Kirodimal And Ors vs Jagdish Narayan Goyal
2022 Latest Caselaw 4782 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

             S.B. Civil Second Appeal No. 119/2017

Kirodimal And Ors.
                                                                  ----Appellants
                                    Versus
Jagdish Narayan Goyal
                                                                 ----Respondent

For Appellant(s) : Mr. Tanveer Ahmad For Respondent(s) :

HON'BLE MR. JUSTICE SUDESH BANSAL

Order

13/07/2022

Appellants-defendants have preferred this second appeal

against judgment and decree dated 18.11.2016 passed by

Additional District Judge No.2, Alwar (Raj.) in civil appeal

No.111/2009 affirming the judgment and decree dated

16.02.2005 passed by Civil Judge (J D) Thanagaji, Alwar in Civil

Suit No.21/1995 wherein the suit filed by appellant-defendants

was dismissed.

Learned counsel for appellants submits that appellants have

also a right to have access to their residential houses through

stairs in question and much prior to filing of the suit, appellants

were using the stairs for ingress and egress to their houses

properties situated at the first floor.

Respondent-plaintiff does not have any absolute ownership

and right to use the stairs and cannot deprive appellants-

defendants from using the stairs in question. However, two courts

below have committed illegality and jurisdictional error in passing

a decree in mandatory form against appellants treating the stairs

(2 of 2) [CSA-119/2017]

in question in the absolute ownership and possession of

respondent-plaintiff.

Heard.

This second appeal requires consideration and is admitted

on following substantial question of law:-

"Whether both the courts have committed jurisdictional error in treating the stairs in question in the absolute ownership and possession of the plaintiff and in passing the mandatory injunction against the appellant to close the gate and stopping the access of appellant from the stairs to reach in his use properties at first floor?

Issue notice to respondent of appeal as well as stay

application.

Record has already been received.

Till further orders, the operation of impugned judgment and

decree dated 18.11.2016 passed by Additional District Judge No.2,

Alwar in civil appeal No.111/2009 and the judgment and decree

dated 16.02.2005 passed by Civil Judge (J.D.) Thanagazi Alwar in

Civil Suit No.21/1995 shall remain stayed and both parties shall

maintain status quo in relation to stairs in question as it exists

today.

(SUDESH BANSAL),J

SAURABH/102

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